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2011 DIGILAW 686 (GAU)

New India Assurance Company Ltd. v. Anwara Begam

2011-08-11

A.C.UPADHYAY

body2011
JUDGMENT A.C. Upadhyay, J. 1. This appeal, under Section 30, read with Rule 32 Sub-Section 2 of the Workmen's Compensation Act, 1923, has been filed by the Appellant-Insurance Company against the impugned judgment and award dated 26.07.2010, passed by the learned Commissioner, Workmen's Compensation, North Tripura, Kailashahar, in Case No. Civil Misc.(Review) 12 of 2010, arising out of TS(WC) No. 02 of 2009. 2. I have heard Mr. P. Gautam, learned Counsel for the Appellant/Insurance Company, and Mr. T.D. Majumder, learned Counsel appearing for the Respondent Nos. 1 to 4. However, none has appeared on behalf of Respondent No. 5. 3. The facts, necessary for disposal of this appeal, may be stated, in brief, as follows: The claimants-Respondent Nos. 1 to 4, who are the wife, daughter and son of deceased, Abdul Sahid, filed a claim petition under the Employees' Compensation Act, 1923, before the learned Commissioner, Workmen's Compensation, North Tripura, Kailashahar, claiming compensation due to the death of deceased, Abdul Sahid, in course of his employment under Respondent No. 1 (Respondent No. 5 herein). 4. Learned Commissioner, Workmen's Compensation, upon hearing the learned Counsel for the parties, by a judgment and order dated 07.05.2010, awarded a sum of Rs. 2,54,160/- (rupees two lakhs fifty four thousand and one hundred sixty) as compensation with interest @ 9% per annum from the date of filing of the claim petition, in favour of the claimants-Respondents, and the Appellant/Insurance Company was directed to pay the aforesaid amount of compensation. 5. The Appellant/Insurance Company, in compliance of the order of the learned Commissioner, Workmen's Compensation, deposited an amount of Rs. 2,78,940/- (rupees two lakhs seventy eight thousand and nine hundred forty) including interest @ 9% per annum, before the learned Commissioner, Workmen's Compensation, North Tripura, Kailashahar. 6. Subsequently, the claimants-Respondents filed a review petition before the learned Commissioner, Workmen's Compensation, for review of the judgment and award, passed by the Commissioner, on 07.05.2010, stating therein, that learned Commissioner committed error in reflecting the relationship between the deceased and the claimants-Respondents in the judgment and award as aforesaid and prayed for enhancement of the award. 7. Learned Commissioner, on enquiry found some clerical errors in the judgment and award dated 07.05.2010. 7. Learned Commissioner, on enquiry found some clerical errors in the judgment and award dated 07.05.2010. However, learned Commissioner, after review, apart from correcting the clerical mistake, also enhanced the award of compensation to the extent of 3,11,970/- (rupees three lakhs eleven thousand and nine hundred seventy), together with 9% interest per annum from the date of filing till the date of payment. 8. The Appellant-Insurance Company has challenged the aforesaid award as illegal and beyond the statutory provision. 9. While admitting this appeal filed by the Insurance Company, the following substantial questions of law were formulated by this Court: (i) Whether while reviewing the judgment and award of compensation, the Commissioner, Workmen's Compensation is empowered to enhance the amount of award already passed; (ii) Whether the Commissioner, Workmen's Compensation has the jurisdiction to enhance the compensation in a review petition in view of the provisions of Sub-rule (2) of Rule 32 of the Workmen's Compensation Rules, 1924. 10. Mr. P. Gautam, learned Counsel for the Appellant-Insurance Company, has strenuously submitted that the review order passed by the learned Commissioner, Workmen's Compensation, North Tripura, Kailashahar, is against the provision of Sub Rule 2 Rule 32 of the Workmen's Compensation Act, 1923. The relevant provisions as laid down in Sub-rule 2 Rule 32 of the Workmen's Compensation Rules, 1923, reads as follows: The Commissioner, at the time of signing and dating his judgment, shall pronounce, his decision, and thereafter No. addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission. 11. Learned Counsel for the Appellant-Insurance Company has pointed out that at the time of review of its own order, learned Commissioner, Workmen's Compensation tinkered on the merit of the decision and enhanced the awarded amount, which is prohibited under law. Learned Counsel for the Appellant submitted that on the teeth of specific embargo to enter into the merit of the decision under review jurisdiction, the learned Commissioner, Workmen's Compensation, by passing the impugned order committed error of law by exercising the jurisdiction not vested in law. 12. In support of his contention, learned Counsel for the Appellant-Insurance Company relied on a decision of the Division Bench of this Court, reported in 2007 ACJ 1341 Goljan Nesha v. Gammon India Ltd. and Ors. 12. In support of his contention, learned Counsel for the Appellant-Insurance Company relied on a decision of the Division Bench of this Court, reported in 2007 ACJ 1341 Goljan Nesha v. Gammon India Ltd. and Ors. wherein the Division Bench of this Court, in a similar situation, held that the Commissioner, by reviewing the order, committed apparent error by violating the mandate of law. The relevant extracts of the decision made in Goljan Nesha (supra) read as follows: Our findings: 5. Rule 32(2) of the Workmen's Compensation Rules, 1924 reads as under: 2. The Commissioner, at the time of signing and dating his judgment, shall pronounce, his decision, and thereafter No. addition or alteration shall be made to the judgment other than the correction of a clerical or arithmetical mistake arising from any accidental slip or omission. Thus, under the statute only correction of clerical or arithmetical mistakes have been permitted. 6.1. In Harbhajan Singh v. Karam Singh, the Apex Court held as under: There is No. provision in the Act granting express power of review to the State Government with regard to an order made under Section 42 of the Act. In the absence of any such express power it is manifest that the Director, Consolidation of Holdings, cannot review his previous order of 3.4.1958 dismissing the application of Harbhajan Singh under Section 42of the Act. It follows, therefore, that the order of the Director dated 29.8.1958 is ultra vires and without jurisdiction and High Court was right in quashing that order by the grant of a writ under Article 226 of the Constitution. 6.2. In Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, it was held as follows: (4)...It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. 13. Learned Counsel for the Appellant further relying on the decision, reported in (2002) 3 GLR 471 Employees State Insurance Corporation v. Surendra Sharma has submitted that the power of review is not an inherent power, it must be conferred by the law either specifically or by necessary implication. The relevant extracts of the decision can be gainfully reproduced herein below: 3. It should be borne in mind that the power of review is not an inherent power. It must be conferred by the law either specifically or by necessary implication. The relevant extracts of the decision can be gainfully reproduced herein below: 3. It should be borne in mind that the power of review is not an inherent power. It must be conferred by the law either specifically or by necessary implication. The review is practically hearing a case afresh by the same Judge who has decided it earlier. Such power cannot be exercised unless the statute gives that power to the court. If any authority is required for this proposition, one may have a look at 2001 (6) SCC 512 (Kewal Chand Mimani (D) by Lrs. v. S.K. Sen and others) wherein the Supreme Court pointed out that review of a judgment cannot be had on the basis of liberty. The power to review is not inherent power and it must be conferred by law and reliance also was placed in the earlier judgment of the apex court in (1971) 3 SCC 844 (Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji) wherein the Supreme Court I para 4 pointed out the same thing. In the Employees' State Insurance Act, 1948 No. power has been given to review the judgment earlier passed by the Employees' Insurance Court. Further the application of Code of Civil Procedure is limited to the things/matters mentioned in the section. All the procedures of the Code of Civil Procedure cannot be bodily imported by the Employees' Insurance court as it is a special statute and a court under the Act must be governed by the provision of that statute. 14. Learned Counsel for the Appellant further relied on a decision of the Hon'ble Supreme Court, reported in 2000 Cri.L.J. 2433 Lily Thomas etc. v. Union of India and Ors., wherein the Hon'ble Supreme Court held as follows: 53. The dictionary meaning of the word "review" is "the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakersh and Ors. v. Pradyunman singh ji Arjun singh ji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. This Court in Patel Narshi Thakersh and Ors. v. Pradyunman singh ji Arjun singh ji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. 15. In reply to the above contentions, Mr. T.D. Majumder, learned Counsel for the claimants-Respondents submitted that realizing the mistake, which crept in the judgment and award, the learned Commissioner, corrected it in the review order, which is permissible under the law. Learned Counsel further pointed out that the award also had to be modified consequent upon the correction of the relationship between the claimants and the deceased. Referring to the review order, passed by the learned Commissioner, Workmen's Compensation, Mr. Majumder, learned Counsel has submitted that learned Commissioner, himself, admitted the mistake and rectified the order by correcting the relationship of the claimants with the deceased. The relevant observations made by the learned Commissioner, Workmen's Compensation, read as follows: 3. Heard both sides and gone through the judgment passed and the original petition submitted under Workmen's Compensation Act. In the original petition itself nothing is mentioned about the relationship of the Petitioner with the deceased. In the evidence (statement on affidavit) PW 1 only stated about her relationship, but did not tell anything about the relationship with the deceased. However, she stated that the Petitioner No. 2 is her minor daughter, Petitioner No. 3 is her father in law and Petitioner No. 4 is her mother in law. PW 2, however, did not tell anything about the relationship. So, relationship was not rightly reflected in the judgment passed by this Commission. In the judgment father of the deceased, Petitioner No. 3, was considered as son and mother of the deceased was considered as wife of the son. PW 2, however, did not tell anything about the relationship. So, relationship was not rightly reflected in the judgment passed by this Commission. In the judgment father of the deceased, Petitioner No. 3, was considered as son and mother of the deceased was considered as wife of the son. This vital mistake actually told upon the fate of the case. It is an apparent error and requires to be rectified in exercise of the power under Order 47, Rule 1 of the Code of Civil Procedure. From the discovery of new important matter or evidence this error or mistake, which is apparent on the face of the record, is required to be rectified. The parties are the claimants, who prayed for review of the judgment. So, review petition has merit and the judgment is to be rectified accordingly. 16. Learned Counsel for the claimants-Respondents has further relied on a decision, reported in, AIR 1966 SC 1047 Master Construction Company (P) Ltd. v. State of Orissa and Anr., wherein, in a similar situation, the Hon'ble Supreme Court held as follows: The material part of Rule 83 of the said Rules reads: The Commissioner of Sales Tax....... may at any time correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or occurring from accidental slip or omission in an order passed by him, or it. Rule 83 provides a summary remedy within a narrow compass. The jurisdiction of the Commissioner under this rule is limited and is confined only to the correction of mistakes or omissions mentioned therein. An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification namely, such an error, shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. The accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. The accidental slip or omission is an accidental slip or omission made by the court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. 'But the slip or omission may be attributed 103 to the Judge himself. He may say something or omit to say something which he did not intend to say or omit. This 'is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judge's inadvertence or the, advocate's mistake. But, however wide the said expressions are construed, they cannot countenance a re-argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. 17. However, unlike the case as discussed above in Master Construction Company (P) Ltd. v. State of Orissa & Anr (supra) in the instant case, the Commissioner, after correction of the mistake in the order, reviewed the merit of the decision and awarded the enhanced compensation, which is not permissible under the law. As discussed above, undoubtedly, the learned Commissioner had to hear the case on merit to enhance the compensation. Therefore, the decision as indicated in Master Construction Company (P) Ltd(supra), is not applicable in the instant case. 18. Considering the entire gamut of facts, in view of the above discussions, I am of the considered view that learned Commissioner, Workmen's Compensation, exceeded the review jurisdiction as provided under Rule 32(2) of the Workmen's Compensation Rule, 1924, by passing the impugned order. 19. Consequently, the appeal filed on behalf of the Appellant, is allowed and the impugned judgment and award dated 26.07.2010, passed by the learned Commissioner, Workmen's Compensation, North Tripura, Kailashahar, in Case No. Civil Misc.(Review) 12 of 2010, arising out of TS(WC) No. 02 of 2009, is hereby set aside. However, considering the facts and circumstances of the case, I pass No. order as to costs. 20. Before parting with the record, I would like to clarify that the Respondents will be at liberty to avail such other remedy, which may be available in law, by making prayer for condonation of delay in accordance with law. Appeal allowed.